Holder v. Holder, 25668
| Decision Date | 09 April 1970 |
| Docket Number | No. 25668,25668 |
| Citation | 226 Ga. 254,174 S.E.2d 408 |
| Parties | Hiram S. HOLDER v. Cynthia Curtis HOLDER (now Powell). |
| Court | Georgia Supreme Court |
Syllabus by the Court
The agreement here was not in restraint of marriage, and therefore the trial court erred in denying the former husband's application for attachment for contempt against the former wife for failure to surrender custody of their children to him upon her remarriage, pursuant to such agreement, which the judgment in their prior divorce action ordered them to abide by.
Charles D. Wheeler, Decatur, for appellant.
No appearance for appellee.
The controlling issue on this appeal is whether an agreement between a former husband and wife is in restraint of marriage and therefore void as against public policy.
Hiram S. Holder, the former husband, filed an application for attachment for contempt in the Superior Court of DeKalb County against the former wife, Cynthia Curtis Holder Powell, alleging that an agreement between them was made a part of their final decree of divorce and that the decree ordered them 'to abide by the terms' of the agreement. He further alleged that one of the provisions of such agreement was that the wife should have the custody of their two minor children but that in the event she should remarry or leave the State of Georgia, then he should have such custody; that the former wife has remarried; that he has made demand upon her to comply with the divorce decree and give over custody of the children to him but she fails and refuses to do so; and that such failure and refusal constitute a deliberate and intentional violation of such decree and a contempt of the court.
The former wife answered, admitting the agreement and decree, her remarriage, his demand for custody and her refusal, and denying that her refusal to surrender custody was a violation of the decree or constituted contempt. She alleged that the agreement is illegal in that it is in restraint of marriage, and that there has been no material change of condition since the date of the final decree which would affect the health, education or welfare of the children to their detriment.
After a hearing, the trial court denied the application, stating that the former wife's failure to comply with the decree was not a ground for contempt, as the law provides that the only way the court can change custody of minor children after a final judgment and decree fixing it is by the showing of a material change of circumstances substantially affecting the welfare and best interests of the children.
In our view, the former husband's appeal from this judgment is meritorious.
1. The agreement for custody of the children to change to the father upon remarriage of the mother is not void as being in restraint of marriage. What was said by this court in Logan v. Hammond, ...
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Scott v. Scott, S02A1909.
...that mandate, without regard to the child's best interests, the removal of the child from the custodial parent. In Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970), this Court approved a provision that automatically stripped the mother of custody of her children upon her remarriage. Loo......
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Carr v. Carr, A92A1978
...if the mother moved permanently, custody would not change); Hunnicutt v. Sandison, 223 Ga. 301, 154 S.E.2d 587 (1967); Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970). Accordingly, we reverse the trial court's grant of summary judgment to Mrs. Carr on this issue, because we do not find......
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Gordin v. Gordin
...into a final judgment and decree of divorce providing for change of custody upon remarriage of the custodial spouse. Holder v. Holder, 226 Ga. 254(1), 174 S.E.2d 408 (1970); Hunnicutt v. Sandison, 223 Ga. 301, 303(1), 154 S.E.2d 587 We have held that an agreement incorporated into a divorce......
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Bowen v. Bowen, 27884
...have authority '5. To punish contempt by fines not exceeding $200, and by imprisonment not exceeding 20 days.' See Holder v. Holder, 226 Ga. 254, 256, 174 S.E.2d 408; Beavers v. Beavers, 148 Ga. 506(2), 97 S.E. 65; Davis v. Davis, 138 Ga. 8, 11, 74 S.E. 4. Enumeration of error No. 4 contend......
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Domestic Relations - Barry B. Mcgough and Gregory R. Miller
...378-79, 578 S.E.2d at 878-79 (Sears, P.J., dissenting). 44. O.C.G.A. Sec. 19-9-1(a)(3)(A) (1999); O.C.G.A. Sec. 19-9-3(a)(4) (1999). 45. 226 Ga. 254, 174 S.E.2d 408 (1970). 46. Id. at 255, 174 S.E.2d at 409. 47. 207 Ga. App. 611, 429 S.E.2d 95 (1993). 48. Id. at 611, 429 S.E.2d 96-97. 49. 2......